NO.

88-5986
IN THE
OIourt of tq.e
OCTOBER TERM, 1989
CLYDE OSBORNE, Appellant,
v.
STATE OF OIDO, Appellee.
On Writ Of Certiorari To The
Supreme Court of Ohio
BRIEF AMICI CURIAE OF NATIONAL COALITION
AGAINST PORNOGRAPHY, CONCERNED WOMEN
FOR AMERICA, FOCUS ON THE
FAMILY RESEARCH COUNCIL,
NATIONAL LEGAL FOUNDATION, ATHLETES
FOR KIDS, NATIONAL CHRISTIAN
ASSOCIATION AND THE BEREAN LEAGUE,
IN SUPPORT OF THE APPELLEE.
MARK N. TROOBNICK*
).. '"
JORDAN W. LoRENCE
CIMRON CAMPBELL
Concerned Women for America
370 L 'Enfant Promenade SW
Suite 800
Washington, D.C. 20024
(202) 488-7000
*Counsel of Record
H. ROBERT SHOWERS*
Gammon & Grange
1925 K St. NW Suite 300
Washington, D.C. 20006
(202) 862-2000
WENDELL R. BIRD
1150 Monarch Plaza
3414 Peachtree Lane
Atlanta, Georgia 30326
(404) 264-9400
Reprinted by the National Coalition Against Pornography
800 Compton Road, Suite 9224 • Cincinnati, OR 45231 • (513) 521-6227
TABLE OF CONTENTS l
\ ', Page
\ TABLE OF CONTENTS ................ ' ,' . : . . . . . . . . . i
TABLE OF AUTHORITIES •............. • • • • • ••• •• u-v
INTEREST OF AMICIS CURIAE ...••... . . . . . . . . . . . . • . 1
SUMMARY OF ARGUMENT. . . . . . . • . . . . . . . . . . . . . . . . . . . 2
ARGUMENT....................................... 4
I. CHILD PORNOGRAPHY, WHICH Is CHILD SEXUAL
IN PICTURES, HARMS CHILDREN
By ITS PRODUCTION, DISTRIBUTION AND CON-
SUMPTION BECAUSE IT Is A PERMANENT
RECORDING OF THEIR SEXUAL ABUSE AND THE
SEDUCTION TOOL OF CHOICE FOR THE CHILD
MOLESTER.................................. 4
A. Evidence Clearly Reveals That Child Por-
nography Is Directly Connected With Child
Molestation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
B. Possession And Use Of Child Pornography
Involves Substantial Harm To Children ..... 12
C. Children Suffer Severe Psychological And
Physical Harm From Production And Distribu-
tion Of Child Pornography ................ 17
(i) Psychological Harms To Children From
Production .......................... 17
(li) Physical Hanns To Children From Pro-
duction ............................. 19
(lii) Harms To Children From Distribution . . 22
II. NEUROCHEMICAL EVIDENCE SHOWS THAT PEO-
PLE REACT DIFFERENTLY To PICTURES THAN
THEY Do To WORDS RAISING NEW FIRST AMEND-
MENT CONSIDERATIONS ...................... 23 ,
III. CRIMINAL LAWS AGAINST POSSESSION OF CHILD
PORNOGRAPHY Do NOT VIOLATE STANLEY V.
GEORGIA AND ARE CRITICAL To LAW ENFORCE-
MENT To ERADICATE CHILD PORNOGRAPHY AND
THE CORRESPONDING CHILD MOLESTATION .... 15
CONCLUSION ........•......•................ .- . . . . 30
APPENDIX. . . . . . . . . . . . . . • . . . • . . . . . . . . . . . . . . . . . . . . . 1a
23
\,
t
ceable Legislation, 12 U. Mich. J. Reform 295, 301
(1979) (hereafter cited as Use in (increases
the emotional and psychic harm suffered by the child').
Ferber, 458 U. S. at 759 n. 10.
Child pornography has a life of its own. The depictions are
timeless and may be distributed and circulated for years after
they are initially created. Each time the pornography is
exchanged the children involved are victimized again. The
harm to children from pornography occurs as a result of the
existence of the material itself. According to the Commission
on Pornography, 'the enactment of criminal penalties for the
possession of child pornography is essential if these harms
outlined in Ferber, 458 U.S. at 749, are to be effectively cur-
tailed." Commission on Pornography at 150-151.
II. NEUROCHEMICAL EVIDENCE SHOWS THAT PEOPLE
REACT DIFFERENTLY TO PICTURES THAN THEY DO
TO WORDS RAISING NEW FIRST AMENDMENT CON-
SIDERATIONS20
Visual data, whether good or bad, true or false, appears to be
processed as "truth" immediately, forcefully and with some
degree of permanence, while competing print/speed is pro-
cessed feebly, or in some cases not at all. 21 While visual depic-
tions of child exploitation should be treated more harshly than
written word because of its harm to the child victim, perhaps
the negative and more powerful effect of visual image versus
the printed word on the viewer/reader gives additional weight
to banning pictorial possession of child pornography.
As was explored above, it is the use of pictures which manip-
ulate and exploit children into participating with an adult in a
sexual act. There is a growing body of scientific neurochemical
research which shows that pictures are processed and retained
by the brain in a different manner than the writtQn word. At
least in the context of pictorial child pornography, therefore,
20 Amici acknowledge and thank Dr. Judith Reisman for her valuable
assistance in the development of this concept.
21 See D. Galin, Educating Both Halves o/the Brain, 53 Childhood Educa-
tion 17 (1976).
24
the Court should examine written First Amendment activity
in a different light from pictorial activity.
\ ,
Neurological research has shown that the brain is divided
into two halves or hemispheres, the left and right, and each
half of the brain performs functions. One half of the brain
primarily processes purely congnitive (written) information
while the other half primarily processes visual information. As
one neurologist explains,
The two cerebral hemispheres are differently specialized,
each performing a variety of tasks of which the other is
either incapable or able to accomplish with only marginal
facility. The left hemisphere is specialized for language
comprehension and execution, verbal memory, and the
numerical aspects of calculation, whereas the right hemi-
sphere is specialized for visual-spatial and visual percep-
tual function, nonverbal memory and comprehension, and
execution of speech prosody.
J. Cummings 9 "Hemispheric Asymmetries in Visual-Percep-
tual and Visual-Spatial Function," in Dual Brain: Hemisphere
Specialization in Humans 233 (D. Frank ed. 1985). In general,
the left hemisphere is more important for language and motor
skills, while the right hemisphere does better with visual and
spatial functions. R. Restak, The Brain 248 (1984).
Research in the education field also demonstrates that there
is substantively different responses by the brain to pictures
than to printed words. 22 In much the same manner, advertisers
are researching what stimulates the two hemispheres of the
brain so that a product will be noticed and remembered. At
least one study quite logically suggests that an advertising
campaign consisting of both written words and pictures may
have the most success. Appel, Weinstein, and Weinstein, Brain
Activity and Recall ofTV' Advertising, 19 Journal of Advertis-
ing Research 8 (1979).
A mass communication specialist noted: "The printed word
no longer has the power it once did. . . the addictive, distortive
22 1. Harris, "Right-Brain Training: Some Reflections on the Application
of Research on Cerebral Hemispheric Specialization to Education," in Brain
Lateralization in Children 211 (1988).
25
nature of images are vitally important realities which to
address the issue of freedom of speech. " J. Reisroan, FreedCYm .
Of Speech as My Theology in Electronic EnYjronment, ,3 New
York Review of Law and Social Change, 275-278 (1979). At the
very it is time to seriously reconsider the 19th century
position that words and pictures are to be equated on the same.
First Amendment plane because they effect people in the same
manner. The common-sense reality of the situation (and now a
growing body of scientific research) is that they do not, and
therefore, different First Amendment protections should be
afforded to each. It is no accident that pedophiles revere the
picture more than the word. The pictures of molestation stimu-
late them on a deeper and stronger level, be it neuro-chemical
or psychological. The exploitation of a child in a photograph,
movie, or video is clear, devastating, and it retains its depraved
potency for those that possess and view it.
lt is time to stem the tide of this terrible holocaust which
claims thousands of innocent children as its victims. Possession
of pictorial child pornography cannot be given the same First
Amendment protection as written depiction. Intuition follows
the old adage that "a picture is worth a thousand words."
Unfortunately, a single photograph of a molested child speaks
volumes about the tragedy that has befallen that child.
III. CRIMINAL LAWS AGAINST POSSESSION OF CHILD
PORNOGRAPHY DO NOT VIOLATE STANLEY V.
GEORGIA AND ARE CRITICAL TO LAW ENFORCE-
MENT TO ERADICATE CHILD PORNOGRAPHY AND
THE CORRESPONDING CHILD MOLESTATION
Stanley v. Georgia, 394 US 557 (1969) has been repeatedly
raised by criminal defendants as the Supreme Court case
which constitutionally prevents passage of laws against posses-
sion of child pornography. The Ohio Supreme Court in M ead-
ows, 28 Ohio St.3d answered this question persuasively by
stating: • ,
Thus, Stanley, has always stood for-and still stands for-
the proposition that the state may not, consistent with the
First Amendment, regulate the mere private possession of
material in one's own home merely because it is obscene.
However, it is also significant to our inquiry that Justice